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granting summary judgment for employer as the employer's requirement that the plaintiff provide medical documentation when taking sick leave was not an adverse employment action
Summary of this case from Marmulszteyn v. NapolitanoOpinion
00 Civ. 7693 (SHS).
July 22, 2003.
OPINION ORDER
Plaintiff William Reyes brings this employment discrimination action against the New York State Office of Children and Family Services ("OCFS") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Reyes alleges that OCFS discriminated against him because of his religion, his national origin, and in retaliation for having requested that OCFS accommodate his religious practice. Defendant now moves pursuant to Fed.R.Civ.P. 56 for summary judgment on all claims. For the reasons detailed below, defendant's motion is granted and Reyes' complaint is dismissed.
I. Background
A. Parties
Reyes is a Hispanic of Puerto Rican descent whose religion is Presbyterian and who works as a Youth Division Counselor with OCFS. He was originally hired in January 1979. After several transfers, Reyes began working at OCFS's Queens Aftercare Center ("Queens Aftercare") in 1987, where he continued to work as a Youth Division Counselor until September 2001. (Reyes Aff. ¶ 8.)
OCFS is a state agency whose many functions include housing and rehabilitating juveniles who have committed criminal acts and are placed with OCFS by the Family Court of New York State. Some juveniles who complete OCFS's residential program are conditionally released into the community and remain in a program called "aftercare" in which they are supervised by a Youth Division Counselor. (Mann Aff., 1 4.) As a Youth Division Counselor at Queens Aftercare, Reyes was assigned a caseload of such juveniles and was responsible for meeting regularly with them and their families and monitoring their progress.
B. Denial of Reyes's Request for Religious Accommodation
Reyes is an ordained elder in the Presbyterian Church. His congregation holds worship services on Sundays, but holds ministry activities — such as bible study and community service projects — that Reyes states as an elder he is obligated to participate in on Saturdays. (Reyes Aff. Ex. A; Reyes Dep. 58-59.) In September 1998, as part of his responsibilities to his congregation, Reyes enrolled in the Princeton Theological Seminary's Lay Pastor Program. The program, a three-year course of study that instructs parish elders on how better to serve their churches and communities, held its classes on Saturdays. (Reyes Aff., ¶¶ 10-11.)
In 1998, the New York State Comptroller conducted an audit of OCFS and criticized the number and types of meetings that Youth Division Counselors in the aftercare program were having with juveniles, their families, and school officials. (Mann Aff., ¶ 7.) OCFS determined that the 9 a.m. to 5 p.m. weekday schedules of the Youth Division Counselors were insufficient to meet the needs of its clients, and would have to be expanded to include weekend and evening hours. (Id. ¶¶ 8-9.) As a result of the new policy, all Aftercare staff were now required to work one evening per week and two Saturdays per month, effective December 1998. (Id. ¶ 9, Ex. A.)
Because Reyes's new work requirement conflicted with his participation in the Lay Pastor Program, in December 1998, he asked his supervisor, James Rencher, to be excused from working on Saturdays as a religious accommodation. Rencher denied that request. (Reyes Aff., Ex. D.) Rencher's supervisor, Director of the Bureau of Juvenile Affairs Georgette Furey, testified that she considered Reyes's Saturday commitments "volunteer activities" as opposed to "religious practices" (Furey Dep. 76-77.) Furey also felt that Reyes's absence on Saturdays would prevent the juveniles and families on his caseload from receiving the same services as those assigned to Youth Division Counselors who did work on Saturdays. (Furey Aff., ¶¶ 10-11.)
The record shows that the same week Reyes's request was denied, Furey granted Tommie Reynolds, an African American female OCFS employee, a temporary religious accommodation by excusing her from working Saturdays for the next six months. (Reyes Aff., Ex. E.) At the time Reynolds was the supervisor of the Rochester Aftercare Office and a practicing Seventh Day Adventist whose Sabbath was on Saturday. As a supervisor, Reynolds had no caseload and had been assigned to work only one Saturday per month. (Furey Aff., ¶¶ 8-9.)
Despite being denied his request for a religious accommodation, Reyes completed the Lay Pastor Program in or about May 2001. (Reyes Dep. at 52.) He did work several of his scheduled Saturdays and, when he did not, used his sick leave to attend the program. This resulted in Reyes using more than his allotted sick leave. Consequently, in March 1999 Rencher placed Reyes on what was known as "doctor's certification," which required Reyes to submit a doctor's note for all subsequent sick leave that he took. (Reyes Aff., ¶¶ 24-25, Ex. F.)
On March 16, 1999, Reyes filed a complaint with the EEOC based on the denial of his request for religious accommodation. Reyes claimed that that the failure to grant the accommodation was religious discrimination, that the denial additionally constituted national origin discrimination because accommodations were given to non-Hispanics, and finally that OCFS had retaliated against him for making the accommodation request. (Ferlenger Aff., Ex. A.)
C. OCFS's Post-Complaint Actions
1. Proposed Accommodation
During his participation in the Lay Pastor Program, Reyes continued to make requests for an exemption from the Saturday work requirements. In May 2000, OCFS offered Reyes the opportunity to fill a vacancy for an "intake counselor" in defendant's Pyramid Reception Center in the Bronx, a position that did not require him to work on Saturdays. Pyramid serves as a placement center for juvenile delinquents placed with OCFS. As an intake counselor, Reyes would be responsible for organizing initial matters concerning a youth's placement. (Mann Aff. ¶ 3.) Reyes, however, declined the transfer. In his deposition, he explained that the transfer was undesirable because he would be supervised by an employee who had previously told him not to speak Spanish in the office, he was not experienced as an intake counselor, and the transfer was not a promotion. (Reyes Dep. at 31.)
2. Denial of Promotion and Transfer
In March 2001, Reyes applied for and was passed over for a promotion to supervisor of Queens Aftercare. (Reyes Dep. at 104.) The position went to Maritza Torres, a Hispanic of Puerto Rican descent who had been working as a Senior Youth Division Counselor at The Bronx Evening Reporting Center. Torres had applied for and was granted a lateral transfer to the position of supervisor of Queens Aftercare.
As a Youth Division Counselor, Reyes was a Grade 18 employee applying for a promotion to a Grade 21 position. Torres was already a Grade 21 employee when she transferred to Queens Aftercare and became supervisor of that office.
Two months after applying for the promotion, Reyes clashed with his supervisors over a new program in which OCFS would electronically monitor its clients. Reyes believed that the additional job requirements imposed on counselors by the program were unfair, and made his complaints known at a contentious May staff meeting. At the meeting, Reyes complained of chest pain and was taken away in an ambulance. Reyes was diagnosed with anxiety and stress, and was on sick leave until early June. (Reyes Aff. ¶¶ 43-44.) A recurrence of his symptoms caused Reyes to take another week of medical leave in mid-June. Thereafter, OCFS required Reyes to obtain clearance from a physician and from a psychiatrist appointed by OCFS before permitting him to return to work. (Reyes Aff. ¶ 61). Reyes was not cleared to work until August 27, 2001. As a result of the May staff meeting in which Reyes had a contretemps with his supervisors, OCFS also initiated disciplinary proceedings against Reyes. However, after Reyes attended a formal question and answer session concerning the incident, OCFS decided against disciplining him. (Reyes Aff. ¶¶ 74-81)
On the same day as the formal question and answer session, OCFS informed Reyes that the next week he would be transferred out of Queens Aftercare and into the position of intake counselor at Pyramid that he had previously declined. (Reyes Dep. at 87.) Reyes accepted the transfer and has since worked at Pyramid as a Youth Division Counselor. (Reyes Aff. ¶ 89, Ex. Q.) Reyes claims that his job environment at Pyramid is significantly worse than that at Queens Aftercare due to a longer commute, "significantly different" and less desirable work and the necessity to work with co-workers who "harassed and bullied" him. (Reys Aff. ¶¶ 105-123.)
II. Summary Judgment Standard
Summary judgment may be granted "only when the moving party demonstrates that `there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). The Court must view "all facts in the light most favorable to plaintiff and resolve all factual disputes in plaintiff's favor." Mandell v. The County of Suffolk, 316 F.3d 368, 374 (2d Cir. 2002). "To overcome such a motion, the non-moving party must offer sufficient proof to allow a reasonable factfinder to decide in its favor." Mandell, F.3d at 377. Hence, the Court may grant summary judgment only when "`no reasonable trier of fact could find in favor of the non-moving party.'" Allen 64 F.3d at 79 (quoting Lund's Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).
III. Discussion
Title VII of the Civil Rights Act of 1964 provides in relevant part as follows:
"It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter."42 U.S.C. § 2000e-2(a), e-3(a).
As noted above, Reyes claims pursuant to Title VII that he was discriminated against on the basis of his religion and national origin and was then retaliated against for his complaining about this discrimination.
A. Exhaustion of Administrative Remedies
Reyes filed a complaint with the EEOC on March 16, 1999, and received a right-to-sue letter on May 30, 2000. He thereafter initiated this action in October 2000. Many of the alleged discriminatory actions raised by plaintiff in his April 1, 2002 amended complaint, at his June 24, 2002 deposition and in his December 24, 2002 affidavit are not included in Reyes's EEOC complaint, and relate to events that took place well after the filing of the EEOC complaint. Therefore, as a preliminary matter, this Court must resolve which of these events are properly considered as part of this summary judgment motion.
In his original complaint and at his deposition, Reyes asserted as an alternate theory that the denial of religious accommodation was in retaliation for his filing of a 1987 discrimination charge against OCFS that was settled in August 1999. This allegation however, was removed from the amended complaint and not included in Reyes affidavit in opposition to defendant's motion for summary judgment. Even if this allegation had not been dropped, the 1987 complaint is not "reasonably related" to the claims made in Reyes 1999 EEOC filing.
A Title VII claimant may bring suit in federal court only if he or she has filed a timely complaint with the EEOC and has obtained a right-to-sue letter. Shah v. New York State Department of Civil Service, 168 F.3d 610, 613 (2d Cir. 1999) (citing 42 U.S.C. § 2000e-5(e) and (f)). The federal courts generally have no jurisdiction to hear claims not alleged in an employee's EEOC charges. Id. Claims that were not asserted before the EEOC may only be pursued if they are "reasonably related" to those that were filed with the agency. Id. at 614. Subsequent conduct is "reasonably related" to conduct in an EEOC charge if: (1) the claim would fall within the reasonably expected scope of an EEOC investigation of the charges of discrimination; (2) it alleged retaliation for filing the EEOC charge; or (3) the plaintiff "alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002); Butts v. City of New York Housing Preservation and Development, 990 F.2d 1397, 1401-1403 (2d Cir. 1993),superceded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998).
In his EEOC charge, Reyes claims OCFS engaged in the following two discriminatory actions: (1) the denial of his request for religious accommodation in December 1998 as both religious and national origin discrimination, and (2) harassment, intimidation and creation of a false disciplinary record subsequent to Reyes's request. (Ferleger Aff., Ex. A.) Therefore, all of the remaining actions alleged by Reyes in the record — placement on doctor's certification, failure to promote, requirement of psychiatric clearance, his interrogation, and finally the transfer — must be "reasonably related" to the two actions included in the charge to be properly before this Court. To the extent that these incidents are alleged as part of a retaliation claim, they are "reasonably related" as acts taken in retaliation to Reyes's filing of the EEOC charge. See Malarkey v. Texaco, Inc., 983 F.2d 1204, 1209 (2d Cir. 1993);Owens v. New York City Housing Authority, 934 F.2d 405, 410-411 (2d Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991). However, as these incidents are both temporarily and substantively distinct from Reyes's denial of religious accommodation, they cannot be considered "reasonably related" outside of the context of retaliation, and therefore can not be considered discriminatory actions for purposes of Reyes's religious discrimination and national origin discrimination claims.
B. Religious Discrimination Claim
Under Title VII "an employer cannot discriminate against any employee on the basis of the employee's religious beliefs unless the employer shows that he cannot reasonably accommodate the employee's religious needs without `undue hardship' on the conduct of the employer's business.'" Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985) (citing 42 U.S.C. § 2000e(j)); aff'd Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 93 L.Ed.2d 305, 107 S.Ct. 367 (1986). A plaintiff who alleges religious discrimination initially bears the burden of establishing a prima facie case of discrimination. The plaintiff must show: (1) that he had a bona fide religious belief that conflicts with an employment requirement; (2) he informed the employer of this belief; and (3) he was disciplined for failure to comply with the conflicting employment requirement.Philbrook, 757 F.2d at 481. Once the plaintiff makes a prima facie case, the burden shifts to the employer to show that it either made a reasonable accommodation or that it could not make a reasonable accommodation without its business conduct suffering undue hardship. Ansonia, 479 U.S. at 68-69.
OCFS contends that summary judgment in its favor is appropriate because Reyes has failed to state a prima facie case of religious discrimination. Although Reyes clearly satisfies the second element of the test — he informed his employer of his religious belief — defendant contends that he fails to satisfy the other two. First, defendant argues that Reyes's Saturday church activities and participation in the Lay Pastor Program, are "voluntary," and therefore does not constitute a religious practice derived from bona fide religious beliefs. Second, defendant contends that Reyes was never disciplined for his failure to comply with the Saturday work requirement.
1. Reyes's Saturday Obligations Constitute a Bona Fide Religious Belief
Defendant contends that because Reyes belongs to a church that observes the Sabbath on Sundays his participation in church activities such as the Lay Pastor Program on Saturday are "voluntary" and are therefore not afforded Title VII protection. Reyes asserts that as an ordained elder he is obligated to serve his congregation by participating in Saturday church activities; and consequently, he considers Saturday as well as Sunday to be a Sabbath day. (Reyes Aff. ¶ 10-11, Ex. A.)
Title VII defines religion broadly to include "all aspects of religious observance and practice, as well as belief." 42 U.S.C. § 2000e(j). As such, Title VII protects more than the observance of Sabbath or practices specifically mandated by an employee's religion. Heller v. Ebb Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993), Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978), McDaniel v. Essex, 571 F.2d 338 (6th Cir. 1978),Cooper v. General Dynamics, 533 F.2d 163, 168 (5th Cir. 1976). Therefore, attendance at a variety of congregational activities other than worship services has been held to constitute a religious practice protected by Title VII. See Jones v. New York City Department of Correction, No. 99 Civ. 10031, 2001 WL 262844 at *7 (S.D.N.Y. March 12, 2001) (attendance at religious convocation), Heller, 8 F.3d at 1438 (attendance at wife's conversion ceremony), Redmond, 574 F.2d at 899-902 (participation in regularly scheduled Bible study class),Weitkenaut v. Goodyear Tire Rubber Co., 381 F. Supp. 1284, 1288-89 (Vt. 1974) (attendance at monthly church organizational meetings). Reyes's Saturday congregational activities and the Lay Pastor Program are analogous to these religious practices.
Furthermore, defendant's position would require this Court to make a determination as to whether or not a particular practice is or is not required by the tenets of the employee's religion. In Title VII cases concerning religious discrimination, as in questions regarding the free exercise of religion, it is only appropriate for a court to engage in an analysis of the sincerity of a plaintiff s religious beliefs, and not the verity of those beliefs. Philbrook, 757 F.2d at 482. Therefore, Reyes's Saturday commitments could only be considered outside the scope of Title VII if they were found to be personal preferences that are "wrapped in religious garb." Hussein v. Pierre Hotel, No. 99 Civ. 2715, WL 406258 at *3 (S.D.N.Y. April 20, 2001) (rejecting plaintiff's request to wear a beard for religious purposes as not a sincerely held religious belief);see also Hussein v. Hotel Employees and Restaurant Union, 2002 WL 10441 at *4 (S.D.N.Y. Jan. 3, 2002) (rejecting employee's request to attend prayer service at his mosque in Jersey City rather than at one closer to his place of employment), Tiano v. Dillard Dep't Stores, 139 F.3d 679, 682 (9th Cir. 1998) (rejecting employee's request for specific dates off to make religious pilgrimage). Reyes has established the sincerity of his religious belief that his Saturday commitments to his church were mandatory. Accordingly, he has satisfied the first prong of the prima facie test.
2. Reyes Was Never Disciplined
To prove that he was disciplined, a plaintiff must "show that [he] has suffered an adverse change in the conditions of [his] employment." Durant v. NYNEX, 101 F. Supp.2d 227, 233 (S.D.N.Y. June 21, 2000). In Galabya v. New York City Board of Educ., the Second Circuit explained that a plaintiff sustains an adverse employment action when he "endures a `materially adverse change' in the terms and conditions of employment." 202 F.3d 636, 640 (2d Cir. 2000) To be "materially adverse" a change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id.
The record shows that Reyes partially complied with the requirement to work Saturdays. (Reyes Dep. 41.) The sole disciplinary action taken against Reyes for non-compliance was his March 1999 placement on doctor's certification, which required Reyes to provide a doctor's certificate for any further use of sick leave. The action came as a result of Reyes's use of sick leave to attend the Lay Pastor Program on his first four scheduled Saturday workdays. The requirement of documentation for sick leave does not rise to the level of an adverse employment action. O'Dell v. Trans World Entertainment Corp., 153 F. Supp.2d 378, 396-97 (S.D.N.Y. 2001); Nicastro v. Runvon, 60 F. Supp.2d 181, 186 (S.D.N.Y. 1999). Accordingly, because there is no question of material fact that Reyes was not disciplined for his failure to work on Saturdays, he has failed to establish a prima facie case of religious discrimination, and summary judgment is granted to defendant on this claim.
The schedule of the Lay Pastor Program was modified at Reyes's request so that it did not meet every Saturday, reducing his conflicts with work requirements.
C. National Origin Discrimination
To establish a prima facie case of national origin discrimination, a plaintiff must prove that: (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. See Collins v. New York City Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002);St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Once the plaintiff makes out his prima facie case, a presumption of discrimination arises, and the burden of production shifts to the defendant who can rebut the presumption by articulating a legitimate, non-discriminatory reason for the adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the employer makes such a showing, the burden shifts back to the plaintiff to prove that the employer's proffered reason is a pretext for unlawful discrimination. See id.
Reyes has satisfied the first two prongs of a prima facie case; he is a Hispanic of Puerto Rican descent, and he received satisfactory job evaluations while working at Queens Aftercare. As discussed previously, the sole adverse action that Reyes alleged in his EEOC claim (or was reasonably related to the allegations in his EEOC claim) with respect to national origin discrimination is OCFS's denial of his request for religious accommodation. As Reyes suffered no material consequences from that denial, it cannot constitute an adverse employment action. Even if, arguendo, the failure to accommodate Reyes could be established as an adverse action, plaintiff fails to establish circumstances that give rise to an inference of discrimination. Reyes's sole proffer on this point is OCFS's granting of a Saturday accommodation to Reynolds, a non-Hispanic employee. However, Reynolds and Reyes were not equally situated because Reynolds, as a supervisor, had different job responsibilities that made it less burdensome for OCFS to accommodate her religious practices. Therefore, summary judgment is appropriate on the claim of national origin discrimination.
Even if Reyes had been disciplined for failure to meet the Saturday work requirement, the May 2000 offer of a transfer to Pyramid constituted a reasonable accommodation. See Ansonia, 479 U.S. at 70 (reasonable obligation does not have be preferred choice of employee if it "eliminated the conflict between employment requirements and religious practices.").
Another fact that rebuts any inference of national origin discrimination in OCFS's differential treatment of the two accommodation requests is OCFS's admission that it considered (correctly or incorrectly) the Saturday religious conflict of Reynolds, a Seventh Day Adventist, to be more serious than Reyes's claimed religious conflict.
D. Retaliation
Finally, Reyes claims that OCFS retaliated against him for his complaints about religious and national origin discrimination. The burden-shifting scheme for a retaliation claim is similar to that for a claim of national origin discrimination. First, the plaintiff must demonstrate a prima facie case of retaliation. Then the defendant must point to evidence of a legitimate non-retaliatory reason for the complained of action. If the defendant meets its burden, plaintiff must "demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation." Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998). "To make out a prima facie case of retaliation, plaintiff must show: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff, and (3) a casual connection between the protected activity and the adverse employment action." Id. Because the plaintiff's evidence does not support all elements of a prima facie case of retaliation, summary judgment is granted on this claim as well.
To prove that he engaged in protected activity, the plaintiff need not establish that the conduct he opposed was in fact a violation of Title VII, but rather that he had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Manoharan v. Columbia University College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Here, Reyes alleges that he was retaliated against for his opposition to OCFS's denial of his request for religious accommodation. As there is no evidence that shows that Reyes did not have a good faith belief that the action was discriminatory, he satisfies the first prong.
This is the sole alleged protected activity in the EEOC charge and the amended complaint. However, in his affidavit and deposition, Reyes added that he was retaliated against for his criticism of certain of OCFS's policies. These claims were barred by Reyes's failure to exhaust administration remedies (See supra III A).
In his amended complaint, deposition, and affidavit, Reyes alleges numerous actions by OCFS to be adverse employment actions taken in retaliation, including harassment, creation of a false disciplinary record, placement on doctor's certification, requirement of psychiatric clearance, and postponement of a planned vacation. None of these employment actions created a materially adverse change in the terms and conditions of Reyes's employment and, in consequence, each falls short of being adverse employment actions.
The event at the core of Reyes's retaliation claim, his September 2001 transfer from Queens Aftercare to the Pyramid Reception Center, also does not constitute an adverse employment action. After the transfer, Reyes continued to work as a Youth Division Counselor, and both his grade and pay remained the same. Generally, a lateral transfer is not held to be an adverse employment action because it does not "result in a change in responsibilities so significant as to constitute a setback in the plaintiff's career." Galabya, 202 F.3d at 641. Such a setback can be evidenced by a decrease in salary or a "loss of benefits, prestige, or opportunities for advancement." Id. at 639; De la Cruz v. New York City Human Resources Administration Dept. of Social Service, 82 F.3d 16, 21 (2d Cir. 1996) (transfer from elite division which provided prestige and opportunity for advancement, to a less prestigious unit with little opportunity for professional growth adverse employment action)
Reyes has put forth no evidence to show a loss of opportunity for professional growth resulting from his transfer to the Pyramid Reception Center. It is undisputed that Reyes's salary, benefits, job title, and grade remain the same after his transfer. Rather, plaintiff claims that the transfer is adverse because of certain undesirable conditions at Pyramid, such as working with an employee who told him not to speak Spanish in the office, working next to a co-worker who allegedly assaulted him in the past, commuting for an extra half-hour to get to work, and not being trained for the job responsibilities of an intake counselor. None of these inconveniences make the transfer an adverse employment action. See Galabya, 202 F.3d at 640 (the inferior facilities that plaintiff worked in after a transfer did not "render the reassignment an adverse employment action"). While Reyes is clearly dissatisfied with his transfer, his "subjective feelings about the transfer" do not render this employment action adverse. Garber v. The New York City Police Dept., No. 95 Civ. 2516, 1997 U.S.Dist. LEXIS 12590 at *19 (S.D.N.Y. August 22, 1997) (an involuntary, lateral transfer of a New York City Police Department civilian employee from the Chaplain's Unit to the Recruitment Section was not an adverse employment action because his job title, job description, salary and benefits remained the same, and he was not deprived of any opportunities for promotion).
Defendant's failure to promote Reyes to supervisor of Queens Aftercare in December 2000, therefore, is the only adverse employment action Reyes actually sustained. Reyes however has shown no causal connection between his complaints of religious and national origin discrimination on the one hand, and the denial of his promotion request on the other. Proof of a causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action. Manoharan, 842 F.2d at 593 (1988). Causation is therefore "less likely if there is a long hiatus between the protected activity and the [adverse action].'" Honey v. County of Rockland, 200 F. Supp.2d 311, 321 (S.D.N.Y. 2002) (plaintiff could not show a casual connection between her protected activity and an adverse employment action because a year had passed between the two occurrences). In the instant case, plaintiff applied for a promotion in December 2000, more than a year after filing his EEOC complaint in May 1999. Moreover, even if Reyes's could establish a prima facie case of retaliation, OCFS provides a non-retaliatory justification for denying Reyes's the promotion — by assigning the position to an experienced supervisor who requested a lateral transfer.
Because Reyes cannot show a causal connection between the sole adverse employment action he suffered subsequent to his complaints of religious and national origin discrimination, he fails to make out a prima facie case of retaliation and summary judgment is granted on this claim as well.
III. Conclusion
For the foregoing reasons, defendant's motion for summary judgment is granted on plaintiff's claims of religious discrimination, national origin discrimination, and retaliation. Accordingly, plaintiff's complaint is hereby dismissed.
SO ORDERED.